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Cyber Libel: What Employers Can do in the Age of Social Media

This guest post is courtesy of Terri R. Stewart and Joseph L. WilsonFisher & Phillips LLP
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With social media sites at virtually every employee’s fingertips, libel via the internet is becoming much more prevalent. Employees now have the opportunity to log on to their favorite social media site and vent about their co-workers, supervisors, and employers.

Indeed, social media sites like Facebook and Twitter have exploded. There are now approximately 1.06 billion active users on Facebook and more than 250 million photos uploaded to the site every day.

The popularity of YouTube has skyrocketed as well, and an uploaded video can go viral in a matter of days. Don’t forget about Twitter, too. Twitter’s popularity continues to increase as over 400 million “tweets” on Twitter are sent out daily. Social media sites have simply become so powerful that they have started a revolution.

To that end, employers need to closely watch these social media sites to protect their companies’ and their managers’ reputations from being damaged by inappropriate postings. Employers also want to ensure that their corporate officers and managers do not post material that could create a claim against them.

Many state and federal laws touch on social media, but the state law tort of libel might just be the claim that comes into play. Although the tort can vary somewhat from state to state, employers should be aware of this area of the law in order to spot libel when it occurs.

Courts have defined libel as the false and malicious defamation of another, expressed in print, tending to injure the reputation of a person and exposing him or her to public hatred, contempt, or ridicule. In addition, actual damages to the injured party’s reputation must be proven in order for the prosecuting party to recover a judgment.

As a threshold matter, any statement that might be considered defamatory first must be in writing for a libel claim – spoken word isn’t enough. Furthermore, the written statement must be posted as a statement of fact and not merely an opinion. This means that if an employee posts a message on Twitter saying that he believes he is underpaid at Company X, this will probably be construed as merely an opinion and therefore, not actionable. Even so, employers should be careful when considering whether or not to discipline an employee for making posts about the company on social media sites as many federal and state laws my come into play. For example, if an employer disciplines an employee for posting about their work conditions or benefits, the employer could be held liable under the National Labor Relations Act (“NLRA”).
In the alternative, an employee who posts a message on their Facebook account claiming that Company X discriminates against employees based on their race, this may be deemed a statement of fact, and therefore actionable. However, if the statement is in fact true, the prosecuting party will not be able to prevail because truth is an absolute defense to a libel claim. As a side note, the employer could be subject to a separate Title VII or state law employment discrimination claim if the allegations are true. On the other hand, if the statement is false, a company may still not want to pursue a libel claim against the employee as it may be deemed retaliation for engaging in protected activity.

In certain cases, damage to one’s reputation need not be proven if the publishing party’s actions constitute libel per se. This usually occurs when the written statement consists of: (1) a statement that someone has committed a crime; (2) a statement that someone has a contagious disease or is guilty of a degrading act which may exclude him or her from society; (3) a statement to another in reference to someone’s trade, office, or profession, calculated to injure him or her therein; or (4) uttering any disparaging words productive of special damage which flows naturally therefrom. The rationale for a libel per se claim is that the statement is so clearly directed at a person’s reputation that damages are assumed. The prosecuting party need only prove that the statement is false, and in some states, that the statement was made with malice.

As an example of cyber libel, a Florida woman was awarded $11.3 million in a libel lawsuit against a Louisiana woman who posted messages on the Internet accusing her of being a “crook” and a “fraud.” Although the amount of damages awarded by the jury was astonishing, the Florida woman was able to demonstrate damage to her reputation by the defamatory internet posts. In the employer-employee context, most cases involving employees making inappropriate postings about their employer have involved the NLRA, and not necessarily just a libel claim. However, in light of these large jury verdicts in Internet libel cases, this trend could change in the near future.

There is a fine line between someone simply expressing an opinion and defaming someone’s reputation through words on the latest social media site. Here are a few helpful hints:

1. Employers should develop an appropriate social networking policy that fits their business goals. For example, it is important to note in the policy that the Company reserves the right to monitor the use of electronic resources while at work, and that employees have no reasonable expectation of privacy in the use of the company’s electronic resources;
2. Employers should be sure to make their employees and managers aware of their policies regarding social networking;
3. Employers should regularly monitor the web about their company to determine what is being said and by whom;
4. Employers should also consider limiting the use of social networking while on the job or perhaps limiting social networking to professional purposes during working hours; and
5. Finally, managers should refrain from “friending” or “following” employees on these social network sites to avoid the temptation to casually correspond with subordinates.

In today’s world, the popularity of social media will only continue to grow. As a result, cyber libel claims will continue to increase as well. If employers implement sound practices and day-to-day policies regarding social media now, these steps will go a long way in preventing libel claims in the future.

Gresham Harkless Jr.

Gresham Harkless is a Media Consultant for Blue 16 Media and the Blogger-in-Chief for CEO Blog Nation. CEO Blog Nation is a community of blogs for entrepreneurs and business owners. Started in much the same way as most small businesses, CEO Blog Nation captures the essence of entrepreneurship by allowing entrepreneurs and business owners to have a voice. CEO Blog Nation provides news, information, events and even startup business tips for entrepreneurs, startups and business owners to succeed.

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